Mock Trial: Let the Courts Handle Sexual Assault

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Another year at Stanford, another Title IX imbroglio. But this time it is on the wrong side of the bench. Spurred by both dissatisfied plaintiffs and defendants, the Stanford Title IX office is now facing four separate US Department of Education investigations and a lawsuit – the most of any university in America.

Originally designed to combat explicit gender discrimination from university officials, Title IX has reinvented itself as a quasi-legal system that adjudicates all allegations of sexual assault on campus. Its recent history been a messy one: defenders of Stanford’s Title IX office laud it as a rare source of justice for victims of sexual assault, while critics fret that it has eroded due process. Praise and concerns become moot, however, when Title IX’s decisions cease to matter. As more and more parties of Title IX arbitrations appeal their verdicts in courts of law, Title IX’s relevance is increasingly called into question.

One man is suing on the basis that Title IX denied him due process when he was accused of assaulting a woman. In another case, a woman claims that the man who sexually assaulted her was not punished severely enough. Yet another comes from that same man, who instead argues that the result was reached unfairly and is too severe. All share the view that Title IX is grossly mismanaged and ineffective. The number of complaints strongly suggests that Title IX is not an effective alternative to the legal system.

Title IX, both at Stanford and across the country, has persistently failed to live up to the standards of American jurisprudence. Title IX justifies its activities by citing the difficulty of prosecuting sexual assault in a criminal court. As opposed to the “beyond a reasonable doubt” standard used in criminal cases, it employs “preponderance of evidence” (a “more likely than not” threshold) as the burden of proof — a standard almost exclusively used in civil cases.

Nowhere is Title IX’s failure to meet even basic jurisprudential benchmarks more pronounced than at Stanford, undermining the university Title IX office’s ability to reach rigorous and fair verdicts. It has a grievous record of losing evidence, failing to lay out a clearly defined set of rules for admitting of evidence, challenging the testimonies of involved parties, and denying basic due process such as the right to a lawyer and the right of the accused to view the evidence leveled against him or her. This lack of stringent standards casts doubt on the supposed impartiality of Title IX investigators and Stanford’s ability to address accusations of sexual assault effectively.

As a result of these compromising practices and the nature of sexual assault cases, parties have large incentives to appeal Title IX decisions. Since the Stanford Title IX office has, in violation of federal policy, repeatedly refused to grant such appeals, parties usually end up taking their appeals to courts of law. Victims want to see justice dealt out and so will not accept a verdict they believe is too lenient. Defendants who believe they can challenge the Title IX verdict almost certainly will; Title IX’s investigation procedure (or lack thereof) grants them ample room to do so. The record number of investigations and lawsuits facing the Stanford Title IX office is, then, hardly surprising.

Shockingly, Stanford is not particularly responsive to cases of sexual assault. While the Board of Trustees has laudably announced that it will spend $2.7 million more on addressing sexual assault on campus this year, the university ignored a student ballot initiative (passed nearly unanimously last spring) for a new report on campus climate. It is truly remarkable that Stanford has been reticent to do so given that the school’s supposed responsiveness and proximity to events on the ground is one of the core justifications for handling sexual assault investigations through Title IX in the first place.

Consequently, Title IX currently acts as little more than a roadblock. It would be more efficient and legally sound to pursue sexual assault cases through the court system from the outset. There is scant evidence that Title IX investigations lead to more just or satisfactory verdicts for either party involved; indeed, all the facts point towards the contrary.

Thus, if we truly seek just verdicts for cases of sexual assault, Title IX is not the answer. Optimally, Stanford would renounce Title IX’s jurisdiction over sexual assault arbitration. The myriad investigations into and lawsuits against Stanford’s Title IX make it clear that both the plaintiff and the defendant tend to value strong legal proceedings. Andrew Miltenberg, an attorney who often represents students accused of sexual assault or misconduct, argues that, “Disciplinary panels were set up for things like cheating, plagiarism and other things for which there is no central process outside of the school. Schools shouldn’t be dealing with this issue, just like they shouldn’t be dealing with a shooting.”

Unfortunately, the federal government is as much to blame as Stanford in this regard. While Title IX persistently fails to live up to basic jurisprudential standards, the US government requires Stanford to hold Title IX investigations into sexual assault cases whether or not the victim takes the case to a criminal court. Even more stunning is the fact that the federal government requires preponderance of evidence as Title IX’s evidentiary standard. Its application of different burdens of guilt to sexual assault depending on whether the crime takes place on or off a university campus is difficult to rationalize. Refusing to comply, however, could jeopardize the billions of dollars of government funding Stanford receives every year.

Pending a shift in federal policy, the best Stanford can do is mandate that its Title IX office adopt the jurisprudential practices of a court of law as closely as possible. Though it cannot do away with the preponderance evidentiary standard in handing out verdicts, Stanford’s Title IX office could use a more rigorous evidentiary standard in doling out punishments such as suspension and expulsion. The university could also bolster the Title IX appeals process and adhere to clear rules for admitting and holding on to evidence. Carefully defining what kinds of evidence should be considered and when as well as transparently logging it from the moment is submitted (to prevent “lost” evidence) would go a long way towards making Title IX investigations palatable for citizens accustomed to the rule of law.

The choice we face is not between due process and care for victims, but rigorous and unsatisfactory arbitration. The answer is easy, implementing it less so.